UPDATE:
Legal Research in Portugal

By José Caramelo Gomes and Sérgio Tomás

José Caramelo Gomes
, LL.B, LL.M, MPhil,
PhD, LL.B,
is the
Head of
Research at the IJP – Portucalense Institute for Legal Research
, and Assessment panel coordinator for individual grants for
doctoral and post-doctoral research in Law and Political Science at FCT
(Portuguese national research funding agency). José’s research interests
include International, European and Comparative Law – especially Competition
Law and Litigation (remedies) - and Legal Science Epistemology and research
methodologies. José has extensive experience in competitive funded research
projects coordination and evaluation in Law and Political Science and has
published internationally in his subjects of interest. He’s visiting professor
in several European Universities and is regularly invited to deliver keynote
speeches at international conferences.

Portugal became
independent in 1143 and is one of the oldest nations in Europe. Except for a
brief period of 80 years, between 1580 and 1640 (when Portugal and Spain were
united under the same crown) Portugal has been sovereign over the same European
territory for several centuries. Moreover, the Atlantic expansion between the
14
th
and the 17
th
century allowed Portugal to develop and
maintain a colonial empire reaching as far as Africa (Angola, Mozambique, Cape
Verde, Guinea and S. Tome and Prince) South America (Brazil), Asia (possession
in India and China) and even to the Pacific Ocean (East Timor). At the same
time trade with the local populations was developed and Portugal settled a huge
number of commercial outposts throughout the world.

There is a
tradition of legal stability in the Portuguese legal system. Although there
have been significant political changes over the centuries, the truth is that
the core of the legal system seems to be able to outlive the political regime
who enacted them. Portuguese legal system is considered to be a classic civil
law system, with strong German and Italian influence.

The Portuguese
legal system started to develop in the 13
th
century with the laws
enacted by King
Afonso
II in 1211, and later compiled in Kingdom’s
Ordinations of D. Duarte (1433-1438?). These documents were the base for the
codification of
Ordenações Afonsinas
in 1446 that were in force until
1521, when they were replaced by
Ordenações Manuelinas
. Altogether, some
of the laws included in the first Portuguese code (
Ordenações Afonsinas
)
were in force for about 300 years, between 1211 and 1521. The second code of
Portuguese legislation (
Ordenações Manuelinas
) was in force between 1521
and 1595
[2]
, when
Ordenações Filipinas
were enacted; the later were, although with
significant changes, in force until the 19
th
century, when the first
modern civil codification,
Código de Seabra
was enacted (1867). This
code was in force until 1967, when the present Civil Code entered into force.
[3]

Along with
substantive law, Portuguese civil procedural law claims an equally long
tradition. The first rules of judicial organization date back to 13
th
century by the hand of King Afonso II; the Supreme Tribunal of the Court was
established in this period and, after some changes in its name, became the
modern Supreme Court of Justice. Some key instruments of Civil Procedural law
in Portugal include the Ordinance of 1582, restructuring procedural law, the
Law of the 20
th
of August of 1774, who restructured the judiciary
organization and procedural law, and the Laws 22, 23 and 24 of 1832, drafted by
Mouzinho da Silveira
, that operated a complete reform of the Portuguese
judiciary and Civil procedure that last, although with numerous changes and
amendments, until the 22
nd
of September 1926, when all of it was
replaced by the Decreto n.º 12353
[4]
.
Previous Portuguese civil procedural law had relied, until then, on a private
conception of the procedural affaire; the main principle governing all the
proceedings was the Principle of the party initiative: the parties were in
charge of driving the courts action and carrying all proof for the judge to
assess and finally rule. The magistrate was mainly a viewer, not an actor. The
1926 reform changed all this and paved the way for a Portuguese Code of Civil
Procedure, enacted in 1939. This Code was replaced in 1961, amended for the
first time in 1967, the second time in 1969, then 1970, 1974, 1975, five times
in 1976, twice in 1977, once in 1978, twice in 1979, twice in 1980, once in
1982, twice in 1985, twice again in 1986, once in 1988 and 1990, once in 1991,
once in 1993, once in 1994, twice in 1995, again in 1996, three times in 1998,
once in 1999, once in 2000, twice in 2001, once in 2002, three times in 2003,
once in 2004, four times in 2006, twice in 2007, five times in 2008, once in
2009, twice in 2010 and once (until October) in 2011
[5]
. Fifty seven
amendments in fifty years, nearly half of it in the last ten years!!!

It is unclear the
relationship between these amendments and the dramatic situation of the
Portuguese Courts. Portuguese judiciary is usually and consistently considered
to be quite inefficient, both by public opinion, legal professionals,
stakeholders and international organizations
[6]
. A clear
evidence of such inefficiency is the length of cases in Portuguese Courts: the
average time of enforcement proceedings was 32 months in 2005 and increased to
43 months in 2010, whereas for civil proceedings the average time of a case was
28 months in 2005 and decreased to 20 months in 2010. Criminal justice is in no
better shape: a criminal case is expected to end after 10 months – this
statistics are from the first instance only: no appeals are considered
[7]
.

T
he
Constitution of the Portuguese Republic of 1976
was
approved after the revolution of the 25
th
April 1974. This
revolution put an end to the authoritarian dictatorship of the Estado Novo,
which had risen with the approval of the Constitution of 1933. It has undergone
seven amendments in 1982, 1989, 1992, 1997, 2004, and 2005. With 296 articles,
it is one of the longest Constitutions in the World. It is the sixth
Constitution in the Portuguese history and the third Republican one.

The 1976 Constitution establishes a democratic
republican form of government under the rule of law and a comprehensive system
of fundamental rights and freedoms. Initially very strongly socialist-oriented,
later amendments to the Constitution made it more liberal. The Portuguese
Constitution is further open to international law and committed to the European
Union objectives.

The
President of the Republic, the Assembly of the Republic, the Government and the
Courts are the bodies which exercise sovereign power. The fashion by which the
Constitution shapes the inter-relations among these bodies results in a
semi-presidential regime.

The
President of the Republic
shall represent the Portuguese Republic, shall guarantee national
independence, the unity of the state and the proper functioning of the
democratic institutions, and shall be ex officio Commander-in-Chief of the
Armed Forces. The President of the Republic is elected for five years by the
universal, direct, secret suffrage of all Portuguese citizens. Its competences
are essentially political.

The
Assembly of the Republic
has a minimum of one hundred and eighty and a maximum of two
hundred and thirty Members (its present composition) and represents all
Portuguese citizens. Members are elected for plurinominal constituencies
geographically defined by law in proportion to the number of citizens
registered to vote therein. Each legislature lasts for four legislative
sessions. All the discussions held in the Assembly are available in the
Diário da Assembleia da República
. The Assembly of the Republic has political, legislative and
oversight competences, as well as the competence to amend the Constitution.

T
he
Government
is the body which conducts the country’s general policy and the
supreme authority in the Public Administration. It is composed of the Prime
Minister, Ministers and Secretaries and Under Secretaries of State. The
President of the Republic appoints the Prime Minister after consulting the
parties with seats in Assembly of the Republic and in the light of the
electoral results for such Assembly. The remaining members of the Government
are appointed by the President of the Republic upon a proposal from the Prime
Minister. The Prime Minister is therefore responsible to the President of the
Republic and, within the ambit of the Government’s political responsibility, to
the Assembly of the Republic. The Government has broad political, legislative
and administrative competences.

Today, Portuguese
legal order includes: Constitutional laws, which comprehend the Portuguese Constitution
itself, miscellaneous constitutional laws and laws amending it, the principles
of international law, international agreements and the provisions of the
treaties that govern the European Union and the acts issued by its
institutions; Ordinary laws, which comprise laws enacted by Parliament, decree
laws
issued by the Government, and regional legislative decrees adopted by the
Legislative Assemblies of the Autonomous Regions of the Azores and Madeira;
Instruments with
effect equivalent to that of laws, such as acts approving international
conventions, treaties or agreements, generally binding decisions of the
Constitutional Court declaring measures to be unconstitutional or illegal,
collective
labour
agreements and other collective
instruments regulating
labour
relations; Regulations,
or legislative instruments of lower status than laws, whose purpose is to
supplement laws and fill out the details so that they can be applied or
implemented. These comprise regulatory decrees, regulations, decrees, regional
regulatory decrees, decisions, rules, ministerial orders, executive rulings,
and municipal orders and regulations
[8]
.

The backbone of
the Portuguese substantive law is the Portuguese Civil Code. This is especially
true for Private law, but, to some extent, that is the case of Public law as
well. Most of the basic legal concepts upon which the system is build are laid
there. Such is the case of the enumeration of the sources of law: articles 1 to
5 are dedicated to this subject.

The system gives
clear supremacy to the law, defined in clear and narrow terms: law is a generic
rule enacted by any organ with legislative powers. Those bodies are, according
to the Portuguese Constitution, the Parliament (AR –
Assembleia da República
),
the Government, the regional Assemblies in Azores and Madeira regions and, to
some extent, local assemblies and councils. In brief, law in this sense, may be
designated as legislation. Courts decisions are not a source of law. The one
clear exception is the case of the decisions of the Constitutional Court. The
custom is not an immediate source of law. It is only accepted as an ancillary
source and only when legislation itself admits it. Equity may only be used when
the legislation so determines.
[9]

Legal
interpretation aims to clarify the range of the factual situations and of the
consequences included. Legal interpretation uses several elements. The first is
the literal or grammatical element, i.e., the text of the law. The second
element is the systematic element, i.e., the place, in a given legal order,
where the rule is included; this element is particularly useful to broaden or
narrow the range of the rule: if a rule determines that a contract must be
concluded in writting and this rule is included in a law applying to the lease
contract, one cannot conclude that all contracts must be conclude in writing;
the command shall apply only to the foreseen contracts. The third element is
the teleological one, which is used to correct the results of the application
of the previous elements in light of the aims and goals of the rule and of its
very existence. There is a fourth element, the historical, that places the law
in the context of the moment when it was written, through the readings of any
ancillary or preparatory materials
[10]
.

Legal
interpretation is also used to answer legal omissions. The result is that legal
interpretation may be analogical or extensive. The first happens when a general
rule is applied to a similar uncovered factual situation and the second when a
special rule is applied to a similar uncovered factual situation. Some rules
however, such as some criminal rules, must be subject of restrictive
interpretation, thus preventing the two previously described situations.
Analogical and extensive interpretation deal with three concepts: legal
omission, generic rule and special rule. Legal omission happens when the law
does not foresee a given factual situation. In such a situation, the
interpreter may search for a general rule with a similar factual description
and apply it analogically. General rules, however, may be limited in scope by a
special rule, i. e., when a small change in the facts will determine a
different solution. In such case, if the facts are closer to the description in
this special rule, then the interpreter may apply the special rule by extensive
interpretation.
[11]

Portuguese judiciary system includes
several courts and jurisdictions: the Constitutional Court, the Supreme Court
of Justice and the judicial courts of first and second instance, the Supreme
Administrative Court and the other administrative and fiscal courts and the
Court of Auditors. The judicial courts are common courts for civil matters and
they exercise jurisdiction in all areas that are not attributed to other
judicial jurisdictions
[13]
.

The Portuguese
court system is divided into two main fields of jurisdiction: judicial and
administrative. The first covers all areas of Private law plus Criminal law.
The second covers all aspects of Administrative and taxation law. Both
jurisdictions have three levels. There is a third high level jurisdiction called
the Constitutional Court.

National
territory is divided into 5 judicial sections and 39 judicial circuits. The
Supreme Court of Justice, the Constitutional Court and The Supreme
Administrative Court have jurisdiction over the whole territory

Within the
structure of the judicial courts (generic jurisdiction), there are a number of
specialized courts, at the level of the first instance: criminal instruction,
family, children, labour, commerce, intellectual property, competition,
regulation and supervision, maritime and the execution of sentences.

Legal higher
education in Portugal is divided in three stages: the first cycle of studies,
called Licenciatura, is accessible to students after completion of 12 years of
study. It last for 4 years, corresponding to 240 ECTS (European Credit Transfer
and Accumulation System) and gives access to internships leading for most legal
professions. This degree is equivalent to level 6 of the European
Qualifications Framework.

The second cycle
of studies is
Mestrado
. It is accessible to holders of
Licenciatura
or equivalent and has a length of two years (120 ECTS); it usually requires the
presentation, in writing and viva voce, of a dissertation and is equivalent to
level 7 of the European Qualifications Framework.

The third cycle
of studies is
Doutoramento
. It is accessible to holders of
Mestrado
and
has a duration of no less than three years or 180 ECTS. It requires the
presentation, in writing and viva voce, of a dissertation. It corresponds to
level 8 of the European Qualifications Framework.

All Law Schools
in Portugal deliver the first two cycles of legal higher education in Portugal.
The third cycle is not available in all of them. Tuition in Portugal is in
Portuguese and quite often the written assignments and dissertations, when
applicable, must be delivered in Portuguese.

Portuguese
research in Legal Sciences is performed at a reduced number of Research Centres
(13, although this number includes some more Political sciences specialized
institutions – see
R&D 2007 FCT assessment
). All
Research Centres are integrated in Law or Political Sciences Faculties,
reflecting the structure of the Portuguese Legal Higher education system. There
are several consequences of such an organization; in the first place, most
units have only legal sciences researchers – the teaching staff of the host
Faculty or School; in the second place, the number of doctorate researchers or
teaching staff in Portugal is quite limited (374, including retired staff – see
http://www.dgeec.mec.pt/np4/39/?page=0
); the
third consequence is that Legal research is usually focused strictly in Law,
most of the time in black letter Law or history of Law, mainly about National
law, performed by Legal scholars with no assistance or help from researchers of
other scientific areas, and at a distance of the issues arising from the Law in
action; the forth consequence is the small level of international integration
of research, mostly expressed in advanced formation, delivered by the Faculties
and aimed at Portuguese speaking countries nationals; finally, the aseptic
Legal research environment thus created induces faculty inbreeding and, as a
result of the traditional approach to Legal research common in Portugal,
research methodologies and the relevance of contemporary Comparative law
research and methods are often undervalued.

FCT’s mission is
to continuously promote the advancement of knowledge in science and technology
in Portugal, attain the highest international standards in quality and
competitiveness, in all scientific and technological domains, and encourage its
dissemination and active role in society and in economic growth.

FCT pursues its
mission by funding fellowships, studentships and research contracts for
scientists, research projects, internationally competitive research centres and
state-of-the-art infrastructures, via competitive calls with international
peer-review. FCT ensures Portugal’s participation in international scientific
organisations, fosters the participation of the scientific community in
international projects and promotes knowledge transfer between R&D centres
and industry. Working closely with international organisations, FCT coordinates
public policy for the Information and Knowledge Society in Portugal and ensures
the development of national scientific computing resources.
[14]

FCT is also
responsible for the assessment of the national research units in all scientific
domains. The research assessment exercise takes place every five years and the
last one occurred in 2007. There is an ongoing research assessment exercise and
the results are expected to be published by the end of 2014 or early in 2015.

The assessment will be performed by international experts
appointed by FCT and under the criteria established in the
assessment guide
. The results of
the first round are expected in July 2014 and the final results in December
2014. This article will be updated accordingly.

[1]
See
José Luis
CARAMELO GOMES and José Carlos de Medeiros NÓBREGA, "Transfer of Ownership
in Movables in Portugal," in
National Reports on the Transfer of
Movables in Europe
, ed. Briggita LURGER and Wolfgang FABER(Munique: Sellier
European Law Publishers, 2011).

[2]
This
relatively short period was due to the unification of Iberia under the same
crown.